of Rajasthan Vs. Babu Ram  Insc 687 (5 June 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment rendered by a learned Single
Judge of the Rajasthan High Court at Jodhpur allowing the appeal filed by the
respondent (hereinafter referred to as the 'accused'). Before the High Court
the challenge was to the order dated 31.8.1987 passed by the learned Sessions
Judge, Balotra, in Sessions Case No.10/86 by which while acquitting the accused
for offence punishable under Section 18 of the Narcotic Drugs &
Psychotropic Substance Act, 1985 (hereinafter referred to as the 'Act'),
convicted him for offence punishable under Section 17 of the Act and sentenced
him to undergo RI for 10 years and to pay a fine of rupees one lakh with
2. The High Court directed acquittal on the ground that there was
non-compliance of mandatory requirement of Section 50 of the Act. Before the
High Court though many points were urged, the primary stand was non-compliance
of Section 50 of the Act. The High Court accepted that there was non-compliance
as alleged. Accordingly, the respondent was acquitted by setting aside the
conviction and consequential sentence.
3. In support of the appeal, learned counsel for the appellant-State
submitted that search was not of person of the accused and of bag which was
with accused and, therefore, the High Court erroneously held that the
requirements of Section 50 of the Act were required to be complied with.
4. The controversy turns round Section 50 of the Act and the same (at the
relevant time) reads as under:
"Conditions under which search of persons shall be conducted:
(1) When any officer duly authorized under Section 42 is about to search any
person under the provisions of Section 41, section 42 or Section 43, he shall,
if such person so requires, take such person without unnecessary delay to the
nearest Gazetted Officer of any of the departments mentioned in Section 42 or
to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he
can bring him before the Gazetted Officer or the Magistrate referred to in
(3) The Gazetted Officer or the Magistrate before whom any such person is
brought shall, if he sees no reasonable ground for search, forthwith discharge
the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female."
5. The question, which requires consideration, is what is the meaning of the
words "search any person" occurring in Sub-section (1) of Section 50
of the Act. Learned counsel for the accused has submitted that the word
"person" occurring in Section 50 would also include within its ambit
any bag, briefcase or any such article or container, etc., being carried by
such person and the provisions of Section 50 have to be strictly complied with
while conducting, search of such bag, briefcase, article or container, etc.
Learned counsel for the State has, on the other hand, submitted that there is
no warrant for giving such an extended meaning and the word "person"
would mean only the person himself and not any bag, briefcase, article or
container, etc., being carried by him.
6. The word "person" has not been defined in the Act.
Section 2(xxix) of the Act says that the words and expressions used herein
and not defined but defined in the Code of Criminal Procedure have the meanings
respectively assigned to them in that Code. The Code, however, does not define
the word "person". Section 2(y) of the Code says that the words and
expressions used therein and not defined but defined in the Indian Penal Code,
1860 have the meanings respectively assigned to them in that Code. Section
11 of the Indian
says that the word "person" includes any Company or Association or
body of persons whether incorporated or not.
Similar definition of the word "person" has been given in Section
3(42) of the General Clauses Act. Therefore, these definitions render no
assistance for resolving the controversy in hand.
7. One of the basic principles of interpretation of Statutes is to construe
them according to plain, literal and grammatical meaning of the words. If that
is contrary to, or inconsistent with, any express intention or declared purpose
of the Statute, or if it would involve any absurdity, repugnancy or
inconsistency, the grammatical sense must then be modified, extended or
abridged, so far as to avoid such an inconvenience, but no further. The onus of
showing that the words do not mean what they say lies heavily on the party who
alleges it. He must advance something which clearly shows that the grammatical
construction would be repugnant to the intention of the Act or lead to some
manifest absurdity (See Craies on Statute Law, Seventh ed. page 83-85). In the
well known treatise - Principles of Statutory Interpretation by Justice G.P.
Singh, the learned author has enunciated the same principle that the words of
the Statute are first understood in their natural, ordinary or popular sense
and phrases and sentences are construed according to their grammatical meaning,
unless that leads to some absurdity or unless there is something in the context
or in the object of the Statute to suggest the contrary (See the Chapter - The
Rule of Literal Construction -page 78 - Ninth ed.). This Court has also
followed this principle right from the beginning. In Jugalkishore Saraf v. Raw
Cotton Co. Ltd. AIR 1955 SC 376, S.R. Das, J. said: - "The cardinal rule
of construction of statutes is to read the statute literally, that is, by
giving to the words used by the legislature their ordinary, natural and
grammatical meaning. If, however, such a reading leads to absurdity and the
words are susceptible of another meaning the Court may adopt the same. But if
no such alternative construction is possible, the Court must adopt the ordinary
rule of literal interpretation."
8. A catena of subsequent decisions have followed the same line. It,
therefore, becomes necessary to look to dictionaries to ascertain the correct
meaning of the word "person".
9. A bag, briefcase or any such article or container, etc.
can, under no circumstances, be treated as body of a human being. They are
given a separate name and are identifiable as such. They cannot even remotely
be treated to be part of the body of a human being. Depending upon the physical
capacity of a person, he may carry any number of items like a bag, a briefcase,
a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc.
of varying size, dimension or weight.
However, while carrying or moving along with them, some extra effort or
energy would be required. They would have to be carried either by the hand or
hung on the shoulder or back or placed on the head. In common parlance it would
be said that a person is carrying a particular article, specifying the manner
in which it was carried like hand, shoulder, back or head, etc. Therefore, it
is not possible to include these articles within the ambit of the word
"person" occurring in Section 50 of the Act.
10. The scope and ambit of Section 50 of the Act was examined in considerable
detail by a Constitution Bench in State of Punjab v. Baldev Singh (1999 (6) SCC
172)and para 12 of the reports is being reproduced below :
"12. On its plain reading, Section 50 would come into play only in the
case of a search of a person as distinguished from search of any premises etc.
However, if the empowered officer, without any prior information as
contemplated by Section 42 of the Act makes a search or causes arrest of a
person during the normal course of investigation into an offence or suspected
offence and on completion of that search, a contraband under the NDPS Act is
also recovered, the requirements of Section 50 of the Act are not
11. The Bench recorded its conclusion in para 57 of the reports and
sub-paras (1), (2), (3) and (6) are being reproduced below :
"57. On the basis of the reasoning and discussion above, the following
(1) That when an empowered officer or a duly authorized officer acting on
prior information is about to search a person, it is imperative for him to
inform the person concerned of his right under Sub-section (1) of Section 50 of
being taken to the nearest gazetted officer or the nearest Magistrate for
making the search.
However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence of his
right to be searched before a gazetted officer or a Magistrate would cause
prejudice to an accused.
(3) That a search made by an empowered officer, on prior information, without
informing the person of his right that if he so requires, he shall be taken
before a gazetted officer or a Magistrate for search and in case he so opts,
failure to conduct his search before a gazetted officer or a Magistrate may not
vitiate the trial but would render the recovery of the illicit article suspect
and vitiate the conviction and sentence of an accused, where the conviction has
been recorded only on the basis of the possession of the illicit article,
recovered from his person, during a search conducted in violation of the
provisions of Section 50 of the Act.
xx xx xx (6) That in the context in which the protection has been
incorporated in Section 50 for the benefit of the person intended to be
searched, we do not express any opinion whether the provisions of Section 50
are mandatory or directory, but hold that failure to inform the person
concerned of his right as emanating from Sub-section (1) of Section 50, may
render the recovery of the contraband suspect and the conviction and sentence
of an accused bad and unsustainable in law."
12. These aspects were highlighted in State of H.P. v. Pawan Kumar (2005 (4)
13. In view of the aforesaid judgment by a three Judge Bench of this Court,
the acquittal, as directed by the High Court, is clearly unsustainable.
However, we find that other points were urged in support of the appeal before
the High Court, but the High Court allowed the appeal filed by the accused only
on the ground of non-compliance of Section 50 of the Act. It did not examine
the other grounds of challenge. We, therefore, remit the matter to the High
Court to hear the appeal afresh on grounds other than that of alleged
non-compliance with Section 50 of the Act, which, as noted above, has no
application to the facts of the case.
14. The appeal is allowed to the aforesaid extent.